Felony possession of a firearm charges can include more than just a felon in possession of a gun. So, an ineligible person (a/k/a prohibited person), is a broader category. And since these crimes have severe penalties, we should learn more about the law.
You can do that here.
Due process
Gun laws have become complex and confusing – even for some lawyers and judges. And that’s a problem. After all, the core principle of due process is fair notice. So we should have notice of what to avoid doing to be on the safe side of the law.
When there are grey areas in the law, the rule of lenity applies. So legal grey areas create “reasonable doubt.”
Making the complex, simple
What is a Prohibited Person in Possession of a Firearm crime? First we must understand the gun laws. And we must simplify. So keep in mind that while we start simple, a deeper level of analysis is often possible.
Gun laws in Minnesota include both state and federal laws; interpreted by both Minnesota and federal courts.
Gun laws categorize crimes based upon different factors:
- the object (i.e., type of firearm),
- the person (i.e., “ineligible persons”),
- location or proximity.
Most “ineligible person in possession of a firearm” crimes are state charges. So Minnesota law will be our focus here. Similarly, we’ll discuss what makes a person ineligible to possess a firearm in Minnesota. (And here is our page discussing: the law of felony possession of a firearm in Minnesota.)
What makes a person “ineligible?”
Certain laws strip away people’s rights based upon either past conduct or the person’s status. So here are the most common categories of ineligibility making a “prohibited person:”
- Age 18, with qualifications and exceptions
- Certain criminal convictions
- Certain pending criminal charges, fugitives, restraining orders
- Court civil commitments, and some informal admissions for mental health or chemical dependency
- alien not lawfully present in the USA
Criminal law and ineligibility
Ineligibility is the basis for most felony possession of a firearm charges. The most common grounds of ineligibility are a loss of citizenship rights for:
- a person’s past criminal convictions, or
- pending criminal charges or civil restraining orders.
The rights diminished by certain restraining orders are generally temporary, ending when the period of the Order ends. But ineligibility triggered by a criminal charge or conviction will be our focus here.
The two main bases for lifetime ineligibility, or loss of civil rights, are based upon a criminal conviction:
- Felony “crimes of violence;” and
- Domestic assault and similar crimes.
Felony
Pending felony charge: A criminal charge is “pending” after a prosecutor files a Complaint but before resolution of the case. And a person with a pending felony charge may not legally “receive, ship, or transport any pistol or semiautomatic military-style assault weapon …” Minn. Stat. § 624.713, Subd. 1a. And that applies to people on pretrial diversion or stay of adjudication (since the charge is pending until the end), as well. See, Minn. Stat. § 624.713, Subd. 1 (7), for persons facing felony “crime of violence” charges. So a person can face felony possession of a firearm charges, even with no prior convictions.
Felony convictions: We begin with the General Rule.
Discharge of a Minnesota conviction generally restores the person’s civil rights. And it does to full citizenship; the same as if the conviction had not taken place. Minn. Stat. § 609.165, Restoration of civil rights; possession of firearms, Subd. 1. So, not everyone with a Minnesota felony conviction will be a felon in possession.
Exception: Minn. Stat. § 609.165, Subd. 1a:
“Certain convicted felons ineligible to possess firearms or ammunition. … a person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, is not entitled to … possess, … a firearm or ammunition for the remainder of the person’s lifetime. Any person who has received such a discharge … whose ability to possess firearms and ammunition has been restored under subdivision 1d, shall not be subject to the restrictions of this subdivision.“
And the exception to the exception: Minn. Stat. § 609.165, Subd 1d:
“Judicial restoration of ability to possess firearms and ammunition by felon. A person prohibited by state law from … possessing … a firearm or ammunition because of a conviction or a delinquency adjudication for committing a crime of violence may petition a court to restore the person’s ability to possess … firearms and … ammunition.
The court may grant the relief sought if the person shows good cause to do so and the person has been released from physical confinement.”
In addition to the court Order route, a Pardon Extraordinary also restores all rights of citizens, including rights to firearms.
States can take away, and restore civil rights
Federal law either recognizes or incorporates state law on gun rights. So, Minnesota law controls in this area. Caron v. United States, 524 U.S. 308 (1998); 18 U.S. Code § 921, (a) (20); 27 CFR 478.11 (Meaning of terms. “Crime punishable by imprisonment for a term exceeding 1 year”).
In Minnesota, a person may temporarily lose their gun rights while felony charges are pending, including pretrial diversion.
And after a felony conviction, Minnesota law automatically restores gun rights upon final discharge from sentence; unless the crime of conviction was on the felony crime of violence list (or certain domestic crimes).
But the list of felony “crimes of violence” is long. And it includes many factually non-violent crimes, such as felony possession of marijuana. As a result, people lose their civil rights to guns on a legal technicality.
After a Minnesota felony “crime of violence” conviction, a person loses their civil rights to firearms for life, by default. But a person can get them back if:
For example, with civil rights restoration, a prosecutor can no longer convict the person of felony possession of a firearm as a prohibited person.
Careful though: a typical Minnesota expungement does not restore gun rights.
Non-felony drug crimes
One Minnesota statute says a three-year loss of civil rights to firearms after a misdemeanor or gross misdemeanor drug conviction. But that statute appears to conflict with another statutory provision restoring civil rights, including to guns, immediately upon discharge from probation after a misdemeanor or gross misdemeanor drug crime conviction:
“Subdivision 1 (4) a person who has been convicted in Minnesota or elsewhere of a misdemeanor or gross misdemeanor violation of chapter 152, unless three years have elapsed since the date of conviction and, during that time, the person has not been convicted of any other such violation of chapter 152 or a similar law of another state; …”
2020, Minnesota Statutes §624.713, Subdivision 1 (4)
But, the Minnesota general rule is automatic restoration of civil rights for persons with felony, gross misdemeanor and misdemeanor convictions. Restoration is by operation of statute upon completion of sentence (discharge from sentence, probation, or supervised release). Minnesota Statutes §609.165, RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION:
“Subdivision 1. Restoration. When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place.”
Minnesota Statutes §609.165, Subdivision 1
We were unable to find an appellate case resolving this apparent conflict. Though the Rule of Lenity may apply, prudence and caution may be the better approach.
Domestic crimes
Some domestic assault and similar Minnesota convictions trigger a loss of civil rights to firearms – both felony and misdemeanor. Most Minnesota domestic felony crimes are on Minnesota’s list of felony “crimes of violence;” and cause a loss of gun rights on that basis. So now we can focus on Minnesota non-felony domestic crimes.
What about loss of civil rights to firearms based upon a Minnesota domestic Gross Misdemeanor or Misdemeanor conviction? We need to look at both Minnesota and federal laws.
When applicable, the Minnesota ban is generally three years from the date of conviction. On the other hand, when applicable the federal ban is a lifetime ban, unless civil rights have been restored.
Which applies? Here you can read our in-depth discussion of: Restoring Gun Rights After a Domestic Misdemeanor in Minnesota.
FAQ: “What about a non-felony conviction for violation of a DANCO or an OFP?“
What about a person currently subject to a Minnesota “Order for Protection” (“OFP”) or a “Domestic Abuse No Contact Order” (“DANCO”)? In general, such a person is ineligible to possess a firearm, while the Court Order is in effect only. But the Minnesota statutory prohibition during a DANCO, incorporates federal law by reference. And that federal law contains limits that protect people from unfair criminal charges — in other words defenses. However these will depend upon the specific facts in each case.
But what about a conviction for violation of a DANCO or an OFP? Those convictions are usually based on prohibited “contact” only (not any violent act).
18 U.S.C. § 922(g)(9) is a federal statute making people with convictions of certain crimes ineligible to possess a firearm. It includes “misdemeanor crimes of domestic violence,” defined in 18 USC § 921(a)(33). And under that definition; the statute must have an element of “the use or attempted use of physical force, or the threatened use of a deadly weapon.“
But Minnesota Statutes §629.75 DOMESTIC ABUSE NO CONTACT ORDER crime, does not have such an “element.”
So, after discharge from a sentence for a Minnesota violation of a DANCO or OFP conviction; the defendant has her civil rights to firearms. (Keep in mind, however, that the judge can prohibit firearms while a charge is pending; and as a condition of probation.)
FAQ: “What is the penalty for felon in possession in Minnesota?”
The maximum penalty for gun possession by a person with a felony “crime of violence” conviction, is fifteen years. And for most other ineligible person in possession of a gun cases the maximum is one year (Gross Misdemeanor). Minn. Stat. §624.713, subd. 2. But judges almost never sentence to the maximum.
The maximum does matter though. Because probation can’t normally be longer than the statutory maximum. And the difference between a felony and a gross misdemeanor matters when it comes to a criminal record.
Mandatory minimums: Mandatory minimum sentencing laws are controversial. And public skepticism of them continues to grow. They tend to:
- force judges to execute unjust, long prison terms, even when nonsensical; and have
- disparate impacts based on race.
And we do have several mandatory minimum sentencing laws in Minnesota for gun crimes.
When do mandatory minimum sentencing laws apply in a felony possession of a firearm case? We have two categories in Minnesota:
- Non-gun crimes but where the defendant had a gun (i.e., possession of marijuana)
- Gun crimes (i.e., felon in possession of firearm, sometimes called Prohibition crimes, or malum prohibitum crimes.)
The mandatory minimum sentence in Minn. Stat. §609.11, subds. 5 & 9 is three years. But it’s five years if the defendant has a prior conviction with a gun (including non-violent priors). That usually means a sentence of prison commitment. No probation.
As a result, when a client faces a possession of a firearm charge; Attorney Thomas Gallagher works to avoid the mandatory minimum.
FAQ: “Is it illegal for a felon to be around a gun?”
Gun Crimes Defense Attorney Thomas Gallagher hears this question a lot.
First we must know exactly what the conviction was, and the sentence. The public court record should show this. And you can easily find it online on the Minnesota Courts website, with the court file number.
Another way of asking this question is “have the person’s civil rights to firearms been restored?” Remember, the general rule. A person convicted of a Minnesota felony has civil rights restored when they complete their sentence and are “off paper.”
However, we have an exception to that general rule for a “felony crime of violence” conviction. The felony “crime of violence” conviction triggers the default lifetime ban. A prosecutor can charge a person in this category as a felon in possession.
And then we have the exception to that exception. A person with the lifetime ban for felony “crime of violence;” can seek a Court Order restoring civil rights, or get a Pardon.
But when it comes to non-felony domestic assault convictions, it’s a bit more complicated. So see our article: How to Restore Civil Rights to Firearms After a Misdemeanor Domestic Crime Conviction in Minnesota.
What about a person who never lost their civil rights in the first place; or who got them back? That adult can be around firearms without worry of prosecution as an ineligible person. If you have a question about that, call Gun Crimes Defense Attorney Thomas Gallagher.
Practical implications; Felon in Possession
If a person loses their civil rights to firearms; then they’re an “ineligible person” person”. Or they are a “prohibited person.” So, they can’t legally possess guns.
What if your spouse or family member is an ineligible person? That’s a common problem. Your rights as a citizen should not be infringed, just because you live with someone who is “ineligible.” And technically, they’re not. But what if something happens. What if a prosecutor charges your family member as felon in possession; even though it’s not their gun?
In this situation, you should learn more about the law of possession, starting on our possession of a firearm page. The most safe plan would be to keep any guns out of the house. But some people go with a gun safe with zero access for the prohibited person.
The New Prohibition Regime: Guns
A student of the legal history criminal law learns of Malum Prohibitum versus Malum In Se. The two categories describes things which are illegal merely because of some disapproving law of the King or the legislature, vs. the laws of God, Natural Law, broad social consensus and tradition. In the United States we’ve seen the rise and fall of various criminal Prohibition schemes. All proved failures. We’ve seen an Alcohol Prohibition, a Marijuana Prohibition, and most recently the rise of Gun Prohibition laws.
Some “gun crimes” are Prohibition crimes: Malum Prohibitum, such as mere possession by a Prohibited Person. These are non-violent “crimes.” These laws create an illegal economy that requires self-help policing or enforcement (since criminals cannot use government police or courts).
Perhaps one day, these Prohibition laws will be repealed. But until then, criminal lawyers will be called upon to defend people from such prosecutions.
Defending Ineligible Person in Possession of a Firearm cases
Gun Crime Defense Attorney Thomas Gallagher looks at defenses for felony possession of a firearm cases.
Defenses that apply to any criminal case, can apply here too. But we have more defenses specific to gun possession cases.
Not in Possession; not felon in possession
The basic ingredients of criminal possession are:
- threshold minimum: knowledge of the item and its location
- dominion and control
- ownership is not the same as possession
So, if the prosecutor lacks enough evidence to prove possession, the verdict is not-guilty. And possession cases can be quite fact specific. So each case is different.
For more on defending the possession charge, see our page possession of a firearm.
Not Ineligible, Not Prohibited
If the prosecutor lacks enough evidence to prove that the person is “ineligible” (or a “prohibited person”), then the verdict is not-guilty. And if the person does have their civil rights to firearms, they are not ineligible.
But due to widespread confusion about gun laws, a prosecutor could charge someone despite their restoration of civil rights. An example could be a person with a felony conviction, not on the designated offense list of Minn. Stat. §624.712, subd. 5 “felony crimes of violence.” After such a person completes their sentence, their civil rights are automatically back.
Estoppel
What if the government mistakenly told you that you can legally possess a gun? And you take them at their word. Is it fair that they then prosecute you for that? Of course not. So this can be a defense in the right case.
Jury trial
Why is the jury trial the cornerstone of democracy?
Because the jury is the conscience of the community. Where the government would urge the jury to do evil, the jury can refuse.
The jury has the power to bring a not-guilty verdict, regardless of the facts and the law. So the last defense of democracy and the Constitution is the jury. Felon in possession of a firearm cases sometimes result in jury nullification.
The judge
Judges feel the conflict between the law and justice. We tell them to enforce both. But when the law conflicts with justice, what then?
Sometimes judges enforce the law, unjustly. But other times judges find a way to do the right thing; even when the law pushes them to do wrong.
Gun-related pages:
Self-defense – Minnesota Overview
Ineligible Person in Possession of a Firearm (this page)
Gun With No Serial Number (privately made firearm, “ghost gun”)
Restoration of civil rights to firearms
Gun pages on our Gallagher Criminal Defense Blog
- Felony doesn’t always impair Minnesota gun rights
- Restoring Gun Rights After a Domestic Misdemeanor in Minnesota
- Civil Rights, Guns & Marijuana: Why Minnesota Expungement is Broken
- Three-part series on Self-Defense Law in Real Life
The Defense Attorney: felon in possession
People rarely ask “do I need a good defense attorney?” in felony possession of a firearm cases. They know they do.
With long, mandatory minimum prison sentences; the need is clear.
But because gun laws are complex, you should have a defense attorney who is an expert on gun laws, too.
Recognized expert on gun crime laws
Thomas Gallagher is not only one of the best defense attorneys in Minnesota; he’s also a recognized expert on gun laws.
Take a look at all of the Continuing Legal Education courses Gallagher has taught lawyers and judges. For example, this Minnesota Gun Law CLE. And for every one, his peers invited Gallagher to speak as a recognized legal expert on gun laws.
These are important cases. And you need the best gun crimes defense attorney. So call Attorney Thomas Gallagher about your case.
And check out Attorney Thomas Gallagher’s in-depth articles on:
Minnesota gun laws and rights, as well as
Question about a Minnesota felony possession of a firearm case? Call Minnesota Defense Attorney Thomas Gallagher at 612 333-1500